Citation Nr: 0006852 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 98-11 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran served on active duty from August 1962 to August 1965, from November 1965 to July 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal from an November 1991 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO), which continued the veteran's 10 percent evaluation for degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 under Diagnostic Code 5295. The case was appealed to the Board. In September 1992, the Board REMANDED the case to the RO for additional development. In a June 1993 rating decision, the RO increased the evaluation for degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 to 20 percent under Diagnostic Codes 5292 and 5295 effective from the date of the veteran's reopened claim in May 1991. In a September 1993 statement, the veteran stated that he wished to continue his appeal on his low back disability. Although the June 1993 increase represented a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a "decision awarding a higher rating, but less than the maximum available benefit...does not...abrogate the pending appeal...." AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, the veteran, in a September 1993 statement, expressed a specific intent to continue the appeal. Thus, that appeal is open. In a May 1998 rating decision, the RO continued the veteran's 20 percent evaluation. Preliminary review of the record does not reveal that the RO expressly considered referral of the veteran's claim for an increased evaluation for his low back disability to the VA Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). That regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Undersecretary for Benefits or the Director, VA Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC 6-96 (1996). FINDING OF FACT Degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 is manifested by severe functional impairment. CONCLUSION OF LAW Degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 is 40 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7. 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that the veteran has submitted evidence which is sufficient to justify a belief that his claim for an increased evaluation for degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, his assertion that his service- connected disability has worsened raises a plausible claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran has been recently examined and his medical records have been obtained. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). All relevant facts on this issue have been properly developed and the duty to assist has been met. 38 U.S.C.A. § 5107(a). I. History Service medical records indicate that the veteran complained of low back pain during service and was diagnosed with low back strain. At a July 1990 VA examination, the veteran complained of back pain. In October 1990, the RO granted service connection for degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 and assigned a 10 percent evaluation under Diagnostic Code 5295. In March 1991, the veteran reopened his claim for an increased evaluation for low back disability. A November 1990 VA medical record shows that the veteran was seen complaining of back pain. On evaluation, flexion was limited to 30 degrees with pain, there was pain with straight leg raises, and decreased sensation on the lateral surface of the left leg. The diagnosis was low back pain. In an April 1991 rating decision, the RO denied his claim for an increased evaluation for his low back disability. In May 1991, the veteran again requested evaluation of his low back disorder alleging that his back was worse and he had recently lost his job due to this disorder. VA medical records from March to September 1991 show that the veteran was seen complaining of low back pain. A March 1991 notation states that the veteran had the signs and symptoms of left sciatica, L4-5 and L5-S1 with X-ray evidence of degenerative disc disease at these levels. VA medical records dated in April, May and September 1991 show tender lumbosacral spine bilaterally. Diagnoses included chronic low back pain. In August 1991, the veteran stated that he wore a back brace due to his service-connected back disability. In November 1991, the RO continued the 10 percent evaluation for degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1. The veteran appealed the case to the Board, and in September 1992, the Board REMANDED for additional development. At an October 1992 VA examination, the veteran reported chronic back pain with radiation to both legs, more so on the left. Previous x-rays showed findings consistent with degenerative spondylosis. On evaluation, posture and gait were normal and he was able to perform heel and toe walking. There was no paraspinous muscle spasm noted and there was no tenderness to palpitation over the vertebral column. Range of motion exercises revealed forward flexion to 70 degrees, backward extension to 20 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 30 degrees. There was normal strength with no evidence of muscle atrophy in the lower extremities. Dorsal pedal pulses were normal and straight leg raises to 90 degrees did not produce pain. Deep tendon reflexes in the lower extremities were sluggish bilaterally. X-rays of the lumbar spine revealed disc space narrowing at L4-5 and L5-S1 with anterior and lateral spurring at the same level. A CT scan of the lumbar spine revealed degenerative disc at L5-S1 and minimal degenerative disc at L4-5 with arthritic changes at the apophyseal joints. The impression included degenerative arthritis and chronic degenerative disc disease of the lumbar spine. In an October 1992 statement, R.F. stated that the veteran worked for him as a helper for 6 months, but as the veteran was unable to lift heavy furniture, he had to let him go. At an October 1992 VA neurological examination, cranial nerves were intact, motor strength was 5/5 in all muscles, and sensory was intact. Lumbosacral spine flexion was 15 degrees, extension was 0, and straight leg raises were positive at 70 degrees on the right and negative on the left. The assessment included severe mechanical low back pain with fairly significant spondylosis and degenerative joint disease in the back. The examiner noted that the neuro exam was nonfocal with the exception of pathey numbness distally in left upper extremity probably due to diabetic neuropathy. In June 1993, the RO increased the veteran's degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 to 20 percent effective May 14, 1991, the date of his claim for increase. In a September 1993 statement, the veteran requested that his appeal be continued. The Board concludes that the prior appeal is pending. As noted previously, a decision awarding a higher rating, but less than the maximum does not stop the appeal. AB, 6 Vet. App. at 38. In a May 1998 rating decision, the RO continued the veteran's 20 percent evaluation under Diagnostic Codes 5292 and 5295. II. Analysis Disability ratings are determined by evaluating the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. See 38 C.F.R. § 4.7 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (1999). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40 (1999), which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO has evaluated the veteran's lumbar spine disability under Diagnostic Codes 5295-5292. Under Diagnostic Code 5295, a 20 percent evaluation is warranted with muscle spasm on extreme forward bending and loss of lateral spine motion unilateral, in standing position. An evaluation of 40 percent is provided where there is severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). Under Diagnostic Code 5292, a 20 percent evaluation is warranted for moderate limitation of motion of the lumbar spine and a 40 percent requires severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Code 5292 (1999). The Board notes that the maximum disability rating available under both Diagnostic Codes 5292 and 5295 is 40 percent. As the veteran has degenerative disc disease, the Board will also consider Diagnostic Code 5293. A 40 percent evaluation is provided for severe intervertebral disc syndrome with recurring attacks and intermittent relief warrants a 40 percent evaluation. A 60 percent evaluation is warranted for pronounced invertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriated to the site of the diseased disc, little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). As noted above, the veteran, in his VA Form 9 dated in July 27, 1998, contended that he experienced back pain with radiation down his legs, which disrupted his sleep, limited his range of motion, and generally interfered with his ability to function and was not relieved with 800 mg of Motrin 2-3 times per day. At a September 1998 VA examination, the veteran complained of daily low back pain that radiates up into the thoracic spine. The veteran reported that bending, turning, and lifting make the pain worse. He stated that he used a back brace and a cane and took Motrin and Tylenol for his back. On evaluation, there was no deformity or tenderness and the musculature was normal. Ranges of motion were forward flexion to 58 degrees, backward extension to 9 degrees, right lateral flexion to 7 degrees, left lateral flexion to 13 degrees, right rotation to 6 degrees, and left rotation to 11 degrees with complaints of pain through all ranges of motion. There was no loss of pain or touch sensation in the lower extremities; however straight leg raises at 16 degrees on the right and 21 degrees on the left caused pain in the back. X-ray evidence revealed degenerative arthritis and degenerative disc disease at L5- S1. The diagnoses were remote injury of the lumbar spine with subsequent chronic pain and degenerative arthritis and degenerative disc disease at L5-S1 of the lumbar spine. The examiner opined that the functional loss due to low back pain was significant. The veteran's degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 has been awarded a 20 percent schedular evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5295-5292. Under the rating schedule, a 20 percent evaluation is assigned when the back disability is productive of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, while a 40 percent evaluation is for assignment for a severe disability with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Under this Diagnostic Code 5292, moderate limitation of the lumbar spine is rated at 20 percent and severe limitation of the lumbar spine is rated at 40 percent. When a Diagnostic Code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered. A separate rating need not be made for pain but the impact of pain must be considered in making a rating decision. See VAOPGCPREC 9- 98, Fed. Reg. 63 (1998); Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). The VA is required to consider whether an increased evaluation could be assigned on the basis of functional loss due to pain or weakness to the extent that any such symptoms are supported by adequate pathology. DeLuca, 8 Vet. App. at 206. After reviewing the evidence, the Board finds that the veteran's degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 meets the criteria for a 40 percent evaluation. The record reveals that the veteran has marked limitation of motion of the lumbar spine with X-ray and CT scan evidence of degenerative arthritis and degenerative disc disease. Additionally, the examiner reported that the veteran experienced pain during range of motion testing and that he experienced significant functional loss due to pain. It is clear from the examiner's statement that the veteran continued his range of motion after the commencement of pain. Unfortunately, the examination was not sufficiently detail so as to establish the veteran exact functional loss due to the DeLuca factors. Therefore, we have considered all the evidence of record. Although the ranges of motion have varied during the appeal period, the November 1990 treatment record reflected limitation of flexion to 30 degree. In October 1992 widely divergent findings were recorded. However, the report noting flexion to 15 degrees and extension to 0 degrees is far more consistent with the rest of the record. We also note that the October 1992 examiner commented that there was severe mechanical low back pain. Such pain must be considered in determining the veteran's functional impairment. Overall, the evidence tends to establish that there is severe functional impairment. Therefore, a 40 percent evaluation pursuant to either 38 C.F.R. § 4.71a, Diagnostic Codes 5292 or 5295 (1999) is warranted. As noted above, a 40 percent evaluation is the highest available evaluation under Diagnostic Codes 5292 and 5295. However, the preponderance of evidence is against an evaluation in excess of 40 percent for his degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1. The Board notes that the current evaluation also would contemplate the presence of severe intervertebral disc syndrome under Diagnostic Code 5293. A higher evaluation requires pronounced invertebral disc syndrome with persistent symptoms compatible sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the disease disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999) . There is no medical evidence of record showing findings of pronounced invertebral disc syndrome with persistent symptoms with little intermittent relief. Sciatic neuropathy has not been consistent described. The 1998 examination disclosed that there were hypoactive reflexes rather than absent reflexes. Although the examiner determined that there was significant functional loss, he did not state that there was pronounced functional loss. The Social Security report established that the veteran could stand and walk for two hours during a work shift and that he could sit stand and walk for an hour at a time. He could lift twenty-five pounds and occasionally carry up to fifty pounds. This tends to establish that there is more than little intermittent relief. Moreover, while it is clear from the record that the veteran suffers pain associated with his low back disability as well as loss of range of motion of the lumbar spine, there is no objective evidence, such as disuse atrophy or fatigability, to indicate that the veteran's low back symptoms, including pain and weakness, result in any additional limitation of function to a degree that would support a disability evaluation in excess of the 40 percent. The Board would also note that a 40 percent evaluation corresponds with severe limitation of motion of the lumbar spine under Diagnostic Code 5292. Based on the record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 40 percent for the veteran's degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1. As such, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ORDER A 40 percent evaluation for degenerative spondylosis of the lumbar spine and degenerative disc disease of L4-5 and L5-S1 is granted subject to the laws and regulations governing the award of monetary benefits. H. N. SCHWARTZ Member, Board of Veterans' Appeals